Free Response to Cross Motion [Dispositive] - District Court of Federal Claims - federal

Case 1:01-cv-00201-VJW

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00001 1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS 2 3 CAROL AND ROBERT TESTWUIDE, ) et al., ) 4 ) Plaintiffs, ) 5 ) v. ) NO. 01-201L 6 ) Judge Victor J. Wolski THE UNITED STATES OF AMERICA, ) 7 ) Defendant. ) 8 9 10 11 DEPOSITION UPON ORAL EXAMINATION OF JOHN C. SHICK 12 TAKEN ON BEHALF OF THE DEFENDANT 13 14 Virginia Beach, Virginia 15 July 25, 2005 16 17 18 Appearances: 19 20 21 22 23 24 25 HOFHEIMER/FERREBEE, P.C. By: KRISTEN D. HOFHEIMER, ESQUIRE And QUINN, GORDON & WOLF By: KIERON QUINN, ESQUIRE Counsel for the Plaintiffs

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00005 1 for water, a bathroom break, whatever it is, just let me 2 know and we'll be happy to take a break. And if you don't 3 understand any of my questions, please ask me to rephrase 4 the question and I will be happy to do so. Hopefully to a 5 point where you can understand it. 6 A. 7 Q. Very well. Okay. If you could please state your name,

8 address, and occupation? 9 A. My name is John Charles Schick. I live at 912

10 Duke of Suffolk Drive, Virginia Beach, Virginia, 23454. I 11 am a retired Naval officer. 12 Q. 13 A. 14 Q. Are you currently employed or no? No. Okay. And can you please go through your Navy

15 career, where you were assigned and the positions you held 16 and that kind of thing. From the beginning? 17 A. From the beginning. Okay.

18 I went through OCS at Newport, Rhode Island. 19 1967 I believe was probably the date. My dates may get a 20 little mixed up here. But from OCS I went to diver training 21 school in Key West, Florida, and EOD school in Indian Head, 22 Maryland. Served a tour at Fort Story, Virginia at the EOD 23 GRPLANT at the time. 24 Q. 25 A. What does EOD stand for? Explosive ordnance disposal.

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00006 1 Did a ship board tour on the USS TIDEWATER, a 2 destroyer tender. From there I went to Naval Air Station 3 Moffett Field, California as officer in charge of an 4 explosive ordnance disposal attachment. From there I went 5 to postgraduate school at Ohio State. 6 Q. 7 A. And what years were you in postgraduate school? 1972 to '74.

8 From postgraduate school I went back to Fort 9 Story, Virginia for a follow on explosive ordnance disposal 10 tour. Did a period of time in Egypt participating in the 11 Suez Canal clearance. Came back to Fort Story. Completed 12 that tour. From there I went to the Pentagon and served a 13 tour in op 411, which is the ordnance management side of the 14 Chief Naval Operations. 15 Also served at that same time about an 18-month 16 period of time at the Naval lab at White Oak, Maryland, 17 which is just outside the beltway. From there I went to 18 Seal Beach, California as the ordnance officer, and 19 subsequently as executive officer. Returned as chief staff 20 officer for explosive ordnance disposal group II at Fort 21 Story. Went from that billet to explosive ordnance disposal 22 group I as the commodore, and finished my career as the 23 commanding officer of Naval Weapons Station Earle at Colts 24 Neck, New Jersey. 25 Q. Naval Weapons Station?

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00007 1 A. 2 Q. Earle, E-a-r-l-e.

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And I think I gathered from -- before I go there.

3 What did you retire as? What rank? 4 A. 5 Q. An O-6, Navy captain. I think I gathered from your assignments that you

6 were at Fort Story three times, three different tours? 7 A. 8 Q. Yes. And I think you also said Moffett Field,

9 California? 10 A. 11 Q. 12 A. That's correct. Is that an air station? Naval Air Station Moffett Field, the home of the

13 P-3 aircraft. It was the home. 14 Q. At that time. I understand. When you were there

15 did any other aircraft besides the P-3 operate out of 16 Moffett Field? 17 A. Other aircraft came in, but P-3s were the

18 predominant aircraft, yes. 19 Q. And what years were you at Moffett Field?

20 Approximately, I understand. 21 A. 22 Q. 23 A. 24 Q. 1972 to '74, I believe. 1970 to '72, I think. That's fine. I should have brought my bio. And then returning to Fort Story, the three

25 separate times you were stationed, or assigned to Fort

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00009 1 A. 2 Q. 3 A. 4 Q. 5 A. 6 Q. It would be northwest.

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About roughly how many miles? Four miles. Three to four miles. And then what other places did you live? Where I live now is 912 Duke of Suffolk Drive. Yes. And about how far is that from the air

7 station? The way a crow flies? 8 A. 9 Q. 10 A. 11 Q. A mile and a half, two -- yes. In what direction from the air station? North. Okay. So 504 Kingston Drive, and then -- was

12 that the first time you were stationed at Fort Story you 13 lived there? 14 A. 15 Q. 16 A. Yes. What about the second time? The second time I was stationed I would have been

17 at 912 Duke of Suffolk Drive. 18 Q. 19 A. 20 Q. Okay. So you bought the house? Yes. What year did you buy the 912 Duke of Suffolk

21 home? Approximately? 22 A. 23 Q. 24 A. 25 Q. Mid '80s. Mid '80s? Yes. I will get you some dates if you want. That's fine.

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00010 1 And you haven't lived anywhere else in the Oceana 2 area other than Duke of Suffolk since then? 3 A. Yes. Off and on between the other duty stations,

4 right, came back to it. 5 Q. So you bought the house in the mid '80s at some

6 time. About how long would you have been stationed and 7 lived in the house that first period of time? 8 A. 9 Q. 10 A. Probably about five or six years. And then you went to another assignment? Right. And then I was gone for the period of 10

11 years and then came back on my retirement. 12 Q. So it was five to six year stretch where you

13 lived there consecutively? 14 A. 15 Q. Yes. And then you went to other assignments and came

16 back to retire? 17 A. 18 Q. 19 A. 20 Q. That's right. And what year did you retire? 19 -- official retirement was October of '97. And when you lived there in the mid '80s, did you

21 experience aircraft overflights at that time of your house? 22 A. 23 Q. Certainly, there were overflights at that time. And what type of aircraft were those, if you

24 recall? 25 A. Probably A-6s, maybe some F-14s. And, of course,

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00011 1 the cats and dogs that people fly. 2 Q.

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I understand. Mix and match here and there kind

3 of thing. 4 And were those flights back in that time frame, 5 the mid '80s time frame, would they have been directly over 6 your house, or a certain distance away from your house? 7 A. I'm sure that at that time they occurred pretty

8 much as they occur now. Some are directly over the house 9 and some are on either side of the house. 10 Q. Okay. So it's your recollection that at least

11 the location of the aircraft in terms of flight paths in 12 relation to your house hasn't changed since that time until 13 now? 14 A. 15 Q. 16 A. My house hasn't moved, so -In the flight path? I mean whether the flight paths have changed

17 anywhere else with respect to my house, I don't know. But 18 the ones that are coming over my house come over my house. 19 Those that come near it come near it. 20 Q. In roughly the same way they did back in the mid

21 '80s? 22 A. 23 Q. As far as I can recollect. Did you ever file any noise complaints or

24 anything of that nature? 25 A. No.

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00012 1 Q. 2 A. Associated with -- or at all?

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Sorry. I didn't mean to interrupt you. No, I

3 did not. 4 Q. And you haven't in recent years either at any

5 time? 6 A. Since I've been at -- since I have returned after

7 my retirement, I think I have called one time when I thought 8 the overflights were low, I think. 9 Q. 10 A. 11 Q. And do you remember when that was? No, I don't. And just to try to delve into this a little

12 further, was it within the last year? 13 A. 14 Q. 15 A. 16 Q. 17 A. No. Last two years? No. Three years? No. I think it was further back. I think it was

18 maybe -- let's see. CCAJN has been in existence for about 19 seven years, seven and a half years. Probably around the 20 two-year point. I personally felt it wasn't necessary for 21 me to call, that calls were being made by other people and 22 my voice was being heard at a different level so I didn't 23 need to call. 24 Q. I see. So the complaint would have been roughly

25 five to six years ago?

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00021 1 Leading up to before the F-18s arrived, what was 2 your experience with overflights where you lived, Duke of 3 Suffolk Drive? 4 A. My experience with the overflights were that they

5 were annoying at times, not distressful. I recognized the 6 Navy had a mission, and that the communities that had 7 military in their vicinity had to accommodate some of those 8 annoyances or inconvenience at that time, of the existing -9 which existed. 10 The plan to bring an additional 156 planes I 11 thought merited additional consideration and additional 12 study. And that's what my neighbors were echoing, or I was 13 echoing their concerns. 14 Q. How did you hear from your neighbors? How did

15 you have occasion to talk to them about this? Just on the 16 street? 17 A. Yes. They are neighbors. We get together. We

18 used to get together, have a cul-de-sac party every Labor 19 Day, Memorial Day and 4th of July; and there would be 20, 30 20 families there. 21 Q. And what about neighbors, or community people,

22 residents within the community outside of Wellington Woods. 23 How did you have occasion to talk to those folks? 24 A. As we -- as CCAJN grew, we did a certain amount

25 of outreach to see who else was out there in the community

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00028 1 when I was home and paying attention. Whether it was going 2 all day, I don't know. 3 Q. I see. And did you ever take any sound readings

4 or anything like that at your house? 5 A. 6 Q. 7 A. Have I taken sound readings? Yes. I have but not of the engine run-ups. Not of the

8 maintenance activity but only the overflights. 9 Q. 10 A. 11 Q. 12 A. 13 Q. 14 A. 15 Q. And when did you take those sound readings? I took them within the last six years or so. So since '99 at some time? Yes. Do you know about what time of the year in '99? No. I couldn't tell you what time of the year. Try to explore that a little further. What

16 about, winter, summer, spring? Does that narrow it down at 17 all? 18 A. Well, I took them on several occasions. So it

19 could have been -- and I took them more when I first got the 20 sound meter than I have recently. I have only done it once 21 in, say, the last two or three years. 22 Q. 23 A. 24 Q. 25 A. Do you recall when you got the sound meter? Yes. Probably in '98, '99 time frame. Okay. And why did you buy the sound meter? We wanted to -- this was part of CCAJN. We

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00029 1 wanted to be able to identify to a reasonable degree of 2 accuracy the sounds that we were hearing in a number of 3 places in the community. Several individuals bought sound 4 meters about the same time. The gentleman who I couldn't 5 remember his name, John Mapp, was the one who donated the 6 money for us to buy the sound meters. 7 Q. I see. And did you take all of your sound

8 readings at your home or did your take them in other 9 locations? 10 A. I took them all inside my home or just outside my

11 home. 12 Q. And about how many times have you done that,

13 sound reading measurements? 14 A. Oh, maybe over the course of owning the meter,

15 maybe two dozen times. 16 Q. And have you kept any sort of record of those

17 readings? 18 A. 19 Q. No. Is there a reason why you didn't keep sort of a

20 log of that? 21 A. No. It probably would have been a good idea. I

22 was just trying to get an idea of whether the numbers in the 23 Navy's documents and what we were seeing on the ground were 24 reasonably close. 25 Q. And what was your conclusion about that?

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00030 1 A.

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My conclusion was that the Hornet aircraft noise

2 levels were about what I would expect from what the Navy 3 documents, between 107 and 110 decibels. I was surprised -4 this is not this case -- but I was surprised that the Super 5 Hornets were louder by more than I expected. 6 Q. And what was the reading you would get from the

7 Super Hornet? 8 A. I got readings in the 120s for the Super Hornets.

9 So either they were lower than they should have been and I 10 was closer than their 1,000 feet, or they were louder. You 11 know, that is hard to call. 12 Q. And what about any other aircraft. Would you

13 take sound readings of any other aircraft besides the Hornet 14 and Super Hornet? 15 A. 16 Q. 17 A. F-14s. And what readings did you get for that? They would probably be in the '90s, someplace in

18 the '90s, mid to high '90s. 19 Q. Mid to high '90s.

20 And you mentioned altitude. Are you able to 21 estimate what the altitude the aircraft fly over your house, 22 say now for example? 23 A. As I said, I believe that the -- the Navy's

24 documents that document the Super Hornet noise are probably 25 accurate. I have no reason to believe that the numbers they

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00036 1 Q.

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I think you said you may have done some voluntary

2 work. Is that what you said, or not? 3 A. No. I have done CCAJN work which took a lot of

4 time for the first -- particularly, the first six years when 5 I was chairman. No. I have retired. I retired. 6 Q. 7 A. 8 Q. 9 A. Do you play golf? Badly. You could add a very in front of that. I can relate to that. It's because I didn't try to learn it until after

10 I retired. 11 Q. Well, let's turn now to after the F-18s arrived

12 and began flying. What was your experience in your home at 13 that point? 14 A. When they began flying, we did -- we recognized a

15 significant difference in the impact, particularly in the 16 evenings when they were doing FCLPs, that it was louder. It 17 was noticeably louder. And the disturbances, particularly 18 at meal time, on the telephone, the TV, it was more 19 disruptive than we had noticed before. 20 Q. And how is it more disruptive in terms of

21 watching television, for example? 22 A. Well, you couldn't hear it for longer periods of

23 time and you had to turn the TV up louder if there was 24 something that you wanted to catch. I don't know if the 25 frequency of overflights increased or not from the

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00037 1 additional aircraft. It became noticeably more annoying. 2 Q. And when you say -- I think you said it was

3 longer. The overflights, the noise was longer than you had 4 experienced? 5 A. 6 Q. 7 A. Right. What -- how is it different? I think because it's louder, the noise starts to

8 bother you further in advance of the plane arriving and 9 longer in advance of the -- after it departs an overhead 10 flight, let's say, or one that is next to your property. 11 Q. And I think you described sort of the time

12 interval like for a flight being about 10 to 15 seconds? 13 A. 14 Q. 15 A. 16 Q. Yes. Normally. I have never -Timed it. I understand. Never clocked it. But just sort of a rough -- to get a comparison,

17 where would you place an F-14, for example, in terms of 18 that, it's annoying, you have to turn up the TV, how long 19 that lasts? And I realize you didn't time it. 20 A. 21 Q. Yes. But let's say 10, 15 seconds, how would you

22 compare the F-14 to that? 23 A. 24 Q. Probably 80 percent as long. I mean duration. Okay. So if it were 10 seconds, 8 seconds, if it

25 were 15 seconds, 11 or 12?

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00038 1 A. 2 Q. Yes. Something.

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Let me ask you this: How do you know -- if

3 you're 8 o'clock at night watching a program or something 4 with your family and a flight goes over, how do you know if 5 it's an F-14 or F-18? If you are in your house, you don't 6 actually look outside and see which plane it is, do you know 7 the difference? 8 A. It depends on where the plane is. If I knew that

9 both planes were coming right over the house, I probably 10 could make the distinction. If the F-14 came right over the 11 house and the F-18 was 100 yards to my left, I might not 12 notice the difference. Okay? 13 Q. Okay. Was there anything different about being

14 20 percent longer in terms of the noise being annoying to 15 you with the F-18 in your house watching the TV, or whatever 16 you are doing with your family, is there anything else about 17 it that's different, that overflight experience, if it is 18 directly over your house, for example, an F-18, as compared 19 to an F-14? 20 A. You experience greater vibrations in your house.

21 The windows, the -- if you have any -- particularly, if in 22 you have a plate hung on the wall or something. The 23 vibrations on the wall would be more noticeable. 24 Q. So if the F-18, for example, were -- what did you

25 say, half a mile away or something?

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00044 1 thing. But that is not exactly what you were looking for I 2 don't think. You were looking for more about when the 3 aircraft were coming and that type of thing? 4 Q. 5 A. 6 Q. Yes. Those were probably the -Did you, aside from reading the newspaper, EIS,

7 and those kind of things, and going to community meetings, 8 did your experience with the aircraft themselves, did that 9 change at some point in a fundamental way that was different 10 than what you were experiencing before? 11 A. Well, as more and more aircraft, they were

12 located here from Cecil Field, the issue of noise became an 13 increasing problem, both for the community and noticeably in 14 my home and in my neighborhood. 15 Q. 16 A. And that began when? Well, the planes didn't all come at once. They

17 didn't pick up 160 planes and move them here. I think the 18 first squadron came in December of '98. I'm not sure. But 19 I know it took 8 to 10 months or maybe longer for all the 20 squadrons to relocate to Virginia Beach. 21 Q. And for you the experience with the aircraft or

22 the annoyance that you dealt with, was it progressively 23 increasing over those months of change? 24 A. Yes. As more and more planes were sited here,

25 you could -- the distinction, the noise level distinction

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00045 1 was a distinct increase in noise and annoyance. 2 Q. What about the sort of number of operations that

3 you experienced at your house. You obviously had some 4 overflights directly over your house, you said, and then 5 some, a couple hundred yards on each side. Is that a fair 6 description? 7 A. Yes. I mean it could go miles. It could go a

8 long way either side. 9 Q. Has that been roughly the same since you have

10 been there, since '97? I mean, irrespective of the type of 11 aircraft, has the level of operations been the same roughly? 12 A. 13 Q. I can only speculate. I don't know. But there at no point did you sit down and say,

14 oh, my gosh, the operations over my house have doubled or 15 tripled, or whatever, have increased significantly? You 16 have never sort of had that kind of thought? 17 A. I have never made that particular analysis. What

18 analysis I do is I go back to the Navy's information. We 19 stuck very closely to Navy information in anything we did. 20 If the Navy says they were doing 320,000 overflights in this 21 community, I believe that Navy figure. If that was bigger 22 than -- if that figure was bigger than it was prior, then I 23 would have to say there were more overflights. 24 Q. And why would you believe what the Navy would put

25 out in terms of the numbers and say, 300,000, whatever the

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00052 1 it's maintenance or doing an evolution or something like 2 that. They are in training. 3 Q. Okay. And would you get home in the evenings at

4 6, 7 in the evening? 5 A. 6 Q. 7 A. 8 Q. Yes. Something like that? 6 o'clock. 6 o'clock. Okay.

9 Are you a plaintiff in this litigation? 10 A. 11 Q. 12 A. No. And why not? When I took up the gauntlet, so to speak, I made

13 a determination that I was not going to put myself in a 14 position of having my motives questioned by asking for -15 putting claims on the government for monies when I was 16 drawing my retired salary from the government. So I just 17 kept with that. It's a -18 I also felt that I had a loyalty to the Navy. My 19 participation in CCAJN wasn't to hurt the Navy in any way. 20 I had a great career. I loved every minute. Would have 21 stayed longer. But hopefully to make them -- to encourage 22 them to look at the problems of jet noise, accident risk, 23 health and education, and say, yes, we have some serious 24 issues here that have to be addressed. And that's what I 25 took on to do.

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